Alabama made headlines for executing Dominique Ray after refusing to allow Ray’s religious counselor to accompany him into the execution chamber. (Ray was Muslim, and the Alabama provided only a Christian chaplain.) After the execution, Alabama made further headlines for purportedly modifying its execution protocol to prohibit all religious chaplains and spiritual counselors from accompanying a prisoner into the execution chamber. That change prompted an outcry, including a New York Times op-ed entitled “Does Alabama Support Religious Liberty?”

But it’s not actually clear that Alabama modified its execution protocol. And the lack of clarity on that point underscores a problem with the Court’s decision in Dunn v. Ray and subsequent death penalty cases. The Court has made it a habit of penalizing and calling out prisoners for their death penalty litigation tactics. In fact, it is the states’ sloppiness and secrecy that is creating many of the problems.

Let’s start from the beginning. By now, most people are familiar with the underlying facts of Dunn v. Ray. Alabama had a policy that permitted only prison-employed religious chaplains to accompany prisoners into the execution chamber. (Other chaplains could walk with a prisoner up until the chamber itself.) But the Alabama prison where Ray was held had only a Christian chaplain. Ray, a black, Muslim man, requested permission to have an imam accompany him into the execution chamber. The state denied his request, after which Ray filed suit. Ray argued, among other things, that the prison’s provision of only a Christian chaplain violated the First Amendment’s protections of religious liberty and constituted religious discrimination.  The U.S. Court of Appeals for the Eleventh Circuit stayed his execution to give him time to raise that claim.

In a stunning, brazen, largely unreasoned order, the Supreme Court reversed and vacated the stay. The only indication about the Court’s reasoning was a quotation from an earlier case that said courts have discretion to consider a prisoner’s delay in filing a claim when courts determine whether to grant a stay. (I wrote about that reasoning more here.)

 In a powerful dissent, Justice Kagan demolished the majority’s suggestion that Ray had waited too long to file his claim, or that any delay on Ray’s part was grounds for denying a stay. Justice Kagan wrote:

The warden denied Ray’s request to have his imam by his side on January 23, 2019. And Ray filed his complaint five days later, on January  28.    The State  contends  that Ray  should  have known  to  bring his  claim  earlier, when  his  execution date  was  set on  November  6.   But  the  relevant statute  would  not have  placed  Ray on  notice  that the  prison  would deny  his  request.   To  the  contrary, that statute  provides  that both  the  chaplain of  the  prison and  the inmate’s spiritual adviser of choice “may be present at an execution.”   Ala.  Code §15–18–83(a)  (2018).    It makes  no distinction between persons who may be present within the execution  chamber  and those  who  may enter  only  the viewing room.   And  the prison  refused  to give  Ray  a copy  of  its own  practices  and procedures  (which  would have  made  that distinction  clear).    So there  is no  reason  Ray should have  known,  prior to  January  23, that  his  imam would be  granted  less access  than  the Christian  chaplain to the execution chamber.

After the execution proceeded, it was reported that Alabama “will now prohibit all spiritual advisers, including … Christian prison chaplain[s], from the execution chamber.”

That report and subsequent ones were based on Alabama’s initial emergency motion to the Supreme Court. That initial emergency motion read, in relevant part:

"To accommodate Ray’s stated beliefs and the Establishment Clause, the ADOC has amended its protocol and will no longer allow the prison chaplain, or any other spiritual adviser, in the execution chamber."

The initial application further stated that:

“[A]s a result of the Eleventh Circuit’s order, the lethal injection protocol has been amended to prohibit all spiritual advisors, including the Holman chaplain, from being in the execution chamber.”

But after Alabama filed its initial application, it subsequently filed an amended application.  And the amended application notably omitted the sentences quoted above.  Literally. The paragraph in which the above sentences appeared is largely the same, except it does not have the above sentences.

Ray’s response to Alabama’s emergency application pointed out that Alabama was waffling on what its execution policy was. To Ray, that underscored Alabama’s ability and willingness to change its execution policy on short notice, which also reasonably suggested that Ray could not have known what Alabama’s policy would be well in advance of his execution.

Ray’s response read:

The first pleading presented to this Court from the Commissioner contained an unsupported statement that Alabama’s execution protocol would be changed to bar all spiritual advisors, including the chaplain from the execution chamber during an execution. Two hours later, the Commissioner filed an amended pleading, with that statement removed. Therefore, Alabama’s execution protocol continues to require that the Chaplain be present in the execution chamber. Without a definitive court ruling on this question, Alabama could continue to change and un-change its execution protocol at whim.

Alabama’s reply brief then attributed this change in its briefing to scrivener’s error. No joke:

Ray draws this Court’s attention to language inadvertently included in the State’s original motion due to a scrivener’s error and removed in the amended motion concerning whether the chaplain of Holman Correctional Facility will be present during his execution. The removed language is not the position of the Alabama Department of Corrections, which is why the State filed an amended motion. There has been no change to the ADOC’s policy. As the ADOC made plain in the district court, however, because of Ray’s religious beliefs, the ADOC has agreed to exclude the chaplain from the execution chamber for Ray’s execution.

That is, Alabama suggests it was “scrivener’s error” to announce a change in its execution protocols in its briefs.

You would think that that admission would cause the Supreme Court to look at states’ litigating decisions with the same skepticism that it apparently views prisoners’ briefs seeking stays of executions.  As Dunn v. Ray and the Court’s recent decision in Bucklew v. Precythe and stay decision in Dunn v. Price suggest, that is apparently not the case. (More on this in a bit.)

But back to Ray: Do we even know what is going on in Alabama? That is, is it still Alabama’s policy that (Christian only) chaplains must or may be present in an execution chamber? Does that policy still apply when the prisoner who has been sentenced to deny is not Christian and requests a different spiritual adviser?

I sent three e-mails to three different addresses connected to the Alabama Department of Corrections and received only this one response: “a chaplain’s presence during an execution is at the inmate’s request.” I did not receive a response to my follow up questions about whether Alabama still allowed only prison-employed chaplains into the execution chamber, or whether Alabama still employed only a Christian chaplain at some prisons including Holman, where Ray was killed. (I sent the e-mails and made the calls last Thursday.)

The uncertainty and lack of clarity about Alabama’s execution protocol is relevant to the Court’s treatment of Ray’s stay request. Recall that the Court allowed the state to execute Ray because it faulted him for waiting to challenge his execution until the state actually denied his request for an imam.

The lack of clarity in Alabama’s execution protocol is also relevant to the Court’s treatment of other stay requests like the recent order in Dunn v. Price. In Price, the Court vacated a stay of execution that had been entered. The Court vacated the stay after midnight, which was after the death warrant had expired. Thus, the state could not immediately execute Mr. Price, and the Court could have waited to act until it had time to discuss the petition and stay application at a conference the next day. As Justice Breyer noted in his powerful dissent, “I requested that the Court take no action until tomorrow, when the matter could be discussed at Conference.”

Again in Price, the only reasoning in the order itself is that the prisoner waited too long to challenge the state’s method of execution. (The Court quoted the same language it did in Ray: A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”)

As in Ray, there was a dispute in Price about the nature of the state’s execution processes. The prisoner in Price argued that the state could execute him using a less painful method, and cited what turned out to be the state’s “preliminary” report that found his proposed method of execution was, indeed, less painful. The court of appeals vacated the district court’s stay of execution because the report was preliminary, but it turned out the state actually did have a final version of the report (which contained the same conclusion), and so the district court re-entered a stay (which, again, had only been vacated because of uncertainty about the state of the state’s bureaucratic processes governing its execution protocols). 

In Price,Justice Breyer also noted that there was considerable uncertainty about when inmates actually received the forms that allowed them to select the alternative method of execution that Price sought: “[I]t appears no inmate received a copy of the election form (prepared by a public defender) until June 26, and the State makes no representation about when Price received it other than that it was ‘before the end of June.’ Thus, it is possible that Price was given no more than 72 hours to decide how he wanted to die.”

Justice Breyer therefore concluded the Court’s decision to vacate the stay meant that “Alabama can subject [Price] to that [more painful] death due to a minor oversight (the submission of a “preliminary” version of a final report)” and an incorrect assessment—based on procedural uncertainty—about when the prisoner could have elected an alternative method of execution.

The uncertainty and lack of clarity about Alabama’s execution protocol is also relevant to the Court’s recent decision in Bucklew v. Precythe. Bucklew is the decision in which the conservative, 5-4 majority held that the state could execute Mr. Bucklew using a method that may very well cause him severe and excruciating pain given his unique medical condition. Mr. Bucklew has vascular tumors in his head, neck, and throat, and the various injections could cause the tumors to rupture and suffocate him. The tumors could also prevent the sedative from rendering him unconscious as he suffocated and his blood vessels exploded.

Bucklew was a troubling decision in several respects. The Court refused to apply the established Eighth Amendment standard (which asks whether punishments are consistent with evolving standards of decency), and instead focused on whether a particular punishment (a) “superadded” terror, pain, or disgrace and (b) had “fallen into disuse” at the time of the founding. The Court went out of its way to describe in graphic detail the pain and suffering prisoners experienced by virtue of punishments that were permitted at the time of the founding, and suggested that a standard adopted only by Justices Thomas and Scalia might govern Eighth Amendment claims in the future. 

Bucklew was also troubling because it contained an entirely gratuitous and unnecessary section that chastised prisoners and courts for litigating and adjudicating constitutional claims that delay executions. And the Court approvingly cited its stay order in Ray as an example of courts avoiding undue interference with state executions from last minute prisoner requests.

Justice Sotomayor called out the majority for this aside. In a footnote she said:

A skewed view of the facts caused the majority to misapply these principles and misuse its “equitable powers,” see ante, at 30, and n. 5, in vacating the Court of Appeals’ unanimous stay in Dunn v. Ray, 586 U. S. ___ (2019). Even today’s belated explanation from the majority rests on the mistaken premise that Domineque Ray could have figured out sooner that Alabama planned to deny his imam access to the execution chamber. 

Ray and subsequent cases make clear that the new conservative Court is engaged in a grotesque spectacle and charade in its death penalty jurisprudence. It is still not entirely clear what Alabama’s execution protocol is. Alabama has said different things about its execution protocol *in legal papers filed at the Supreme Court*. Alabama has fought and may continue to fight in court to prevent its execution protocols from being released. (This is different from Texas. After the Supreme Court stayed the execution of Patrick Murphy, the Buddhist man who wanted a Buddhist spiritual adviser in the execution chamber rather than the state-provided Christian chaplain, Texas proudly and publicly released a modified execution protocol that prohibited all religious chaplains and spiritual advisers from being present in the execution chamber.)

And yet the Court continues to fault *capital defendants* for their litigation tactics, and continues to fault *capital defendants* for the last minute nature of stay requests. If anything, Ray and subsequent cases suggest that the Court should more carefully scrutinize states’ representations and states’ tactics in death penalty litigation, not prisoners. That the Court chose not to do so tells you all you need to know about the Court’s values.

@LeahLitman

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